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Johnson v. Mote

March 19, 2007

KEVIN EARL JOHNSON, PLAINTIFF,
v.
STEPHEN MOTE,. ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

ORDER

This cause is before the court for consideration of three pending motions: 1) the plaintiff's motion for reconsideration of the court's March 23, 2006 order granting summary judgment [d/e 80]; 2) plaintiff's motion to show cause [d/e 81]; and 3) plaintiff's motion to rescind the March 23, 2006 payment order. [d/e 83]

I. MOTION FOR RECONSIDERATION

A post-judgment motion seeking substantive relief from a judgment must be made pursuant to either Rule 59 or Rule 60(b) of the Federal Rules of Civil Procedure. Rule 59(e) motions to alter or amend the judgment must be filed within ten business days of the entry of judgment. Hope v. United States, 43 F.3d 1140, 1143 (7th Cir. 1994), cert. denied, 115 S.Ct. 2558 (1995).

The summary judgment motion was granted and judgment was entered for the defendants on March 23, 2006. The plaintiff's motion to reconsider provides no clear indication of when he provided it to prison officials. Therefore, the only date the court has to consider is the date it was received by the clerk of the court which is April 10, 2006. The motion was received after the ten day time frame and the court will consider the motion pursuant to Rule 60 of the Federal Rules of Civil Procedure.

A motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b) "permits a party to seek relief from judgment on the grounds of mistake, inadvertence, excusable neglect, newly discovered evidence, and fraud." American Federation of Grain Millers, Local 24 v. Cargill Inc., 15 F.3d 726, 728 (7th Cir. 1994). Such relief is warranted "only upon a showing of extraordinary circumstances that create a substantial danger that the underlying judgment was unjust." Margoles v. Johns, 798 F.2d 1069, 1073 (7th Cir. 1986).

The plaintiff originally filed his lawsuit pursuant to 42 U.S.C. §1983 alleging that his constitutional rights were violated at the Pontiac Correctional Center by eight defendants. On July 12, 1995 the court granted a motion for summary judgment for most of the named defendants. The court found the plaintiff had one surviving claim: that Defendant Dr. Funk was deliberately indifferent to the plaintiff's serious medical condition. See July 12, 1996 Court Order. The court instructed the defendant to file a well-supported motion for summary judgment.

The defendant filed a dispositive motion. However, the court found that this motion did not provide the proper documentation. The court instructed the defendant to file supplemental affidavits in support of his claims. See February 9, 2006 Court Order. The court gave the defendant a deadline to file the information and allowed the plaintiff additional time to file a response. The parties were advised that no further continuances would be granted.

The defendant filed a revised motion for summary judgment on February 21, 2006.

The plaintiff was again advised of the March 15, 2006 deadline for filing his response. The deadline passed without any response from the plaintiff, and on March 23, 2006 the court granted summary judgment for the sole remaining defendant, Dr. Funk.

The plaintiff now says that he did provide his response to prison officials before the deadline, so it should be considered by the court. The response was received by the clerk of the court on March 24, 2006. It does appear that the plaintiff provided his response to prison officials on March 14, 2006, so the court will consider this the filing date. See Hope, 43 F.3d at 1143. The motion to reconsider the summary judgment motion is granted. [d/e 80] The court will strike the March 23, 2006 Court Order and reconsider the second motion for summary judgment along with the plaintiff's response.

II. MOTION FOR SUMMARY JUDGMENT

A. BACKGROUND

The plaintiff has failed to respond to the statement of undisputed facts. The following facts are taken from Dr. Funk's second motion for summary judgment and the complaint. The plaintiff was an inmate at the Pontiac Correctional Center when he says he re-injured his eye in September of 2002. The plaintiff first injured his eye in March of 2002 when he fell and hit his right eye. He lost substantial vision in the eye, but eye doctors told the plaintiff that ...


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